State v. Boettcher, 57558

Decision Date13 September 1976
Docket NumberNo. 57558,57558
Citation338 So.2d 1356
PartiesSTATE of Louisiana, Respondent, v. Paul E. BOETTCHER, Relator.
CourtLouisiana Supreme Court

John E. Conery, Franklin, for relator.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Edward M. Leonard, Jr., Walter J. Senette, Jr., Asst. Dist. Attys., for respondent.

TATE, Justice.

On the defendant's application, we granted supervisory writs primarily to review his contention that he has improperly been denied a physical lineup whereby his innocence of the charge of murder against him may be demonstrated. 329 So.2d 451 (1976).

The primary basis of the charge of murder made against him is verbal descriptions of his appearance and photoidentification of him by two witnesses to the incident, as well as the witnesses' identification of a motor vehicle found in his possession as similar to the one used by the killer. Despite his request, the defendant has never been afforded a physical lineup before these witnesses.

We granted certiorari to examine the issue of when, if ever, the trial court in its sound discretion may order a lineup to be conducted, if requested by an accused.

Facts

The defendant is charged with second degree murder of Robin McDevitt. The killing took place inside a Morgan City bar about four o'clock in the morning.

A man drove up in a car outside the bar and asked a man (Clifton) coming out of the bar if he knew a certain boat captain. After Clifton said he did not, the man pulled a gun on Clifton and ordered him to go back in the bar.

Once inside, the man asked again about the boat captain. He then left, announcing that anyone who tried to get his license number would be shot.

Robin McDevitt came forward and was hit by one of several bullets the killer shot into the bar. The killer sped away and McDevitt died.

The police found a car meeting the description of the perpetrator's car and determined that the car belonged to Boettcher, the present accused. When they learned that Boettcher worked on a boat and that his physical description generally met the description of the killer, they located Boettcher on the boat where he worked and arrested him.

The police took a photograph of Boettcher, and returned to the bar with that picture and five others for a photographic showup. The police interviewed about twenty-five people that day and the next, asking them to identify the perpetrator. Only two of these people identified the defendant, Clifton and another man.

In Boettcher's Pro se brief to this court, he contends that Clifton, the only witness who the record reveals has come forward against him, positively identified another man, not Boettcher, before he was shown the photographic showup. Boettcher alleges in brief that the information came to him through one of his appointed counsel, who had learned it from a policeman.

A preliminary hearing was held at which defendant waived his right to be present. The district court asked that the record show that 'the defense counsel here has requested that this preliminary examination be conducted without the presence of the defendant, the defense counsel apparently not wishing to have the defendant exposed to those who will identify or attempt to identify him later.'

At the preliminary hearing, Boettcher's appointed counsel made an oral motion that the state 'conduct a lineup at the preliminary hearing, or in connection with or at the time of this preliminary hearing, wherein the defense counsel has requested that the defendant be placed in a lineup, along with some five or six other persons,' to see if the witnesses can identify him. The court overruled the motion on its holding that, under Louisiana jurisprudence, 'a defendant is not entitled to such an out-of-court or out-of-trial time lineup for purposes of seeing if the state's witnesses can identify him.'

Thereafter, Boettcher was indicted by the grand jury for the second degree murder of McDevitt.

Principle issue

The defendant questions the trial court's denial of a motion for a lineup. He alleges that several witnesses failed to identify him from photos and that the only one who has actually identified him from photos positively identified another man before seeing the photos.

Louisiana authority

No statutory authority mandates (or forbids) a court to order a lineup at the defendant's request, in order to assure the fairness of the trial. However, La.C.Cr.P. art. 3 expressly authorizes to courts to adopt procedures not specified by statute, if consistent with the spirit of the provisions of the code and other applicable statutory and constitutional provisions. 1

Four Louisiana cases have found no error in a trial judge's refusal to grant a defendant's request for a lineup. In each instance, the defendant contended that he was entitled to a lineup in order to avoid the suggestion inherent in an in-court identification, but this court held witout discussion that the defendant had no right to demand a lineup. State v. Daniels, 326 So.2d 340 (La.1976); State v. Wright, 316 So.2d 380 (La.1975); State v. Bluain, 315 So.2d 749 (La.1975); and State v. Brooks, 294 So.2d 503 (La.1974). In Brooks and Daniels, we suggested that defense counsel's right to cross-examine and question the weight to be given identification testimony was sufficient to remedy any suggestion inherent in the in-court identification process.

These decisions, however, all concerned the review of convictions after trial on the merits, where in fact no suggestive identification procedures were proved. Although in some instances the language may have been broader, the actual holding in each case was that, under its circumstances, no reversible error was shown to have there resulted from the trial court's denial of the lineup.

In the present case, unlike in the cited decisions, we for the first time examine whether, in advance of a trial, a lineup should be judicially ordered, upon proper showing and if requested by the defendant, to assure the fairness of the identification procedures and possibly to prevent an accused's being subjected to trial despite the lack of any reliable identification of him as the offender (where visual identification is indeed the essential basis of the charge against him).

Fairness-context of the issue

The policy behind the careful judicial examination of identification procedures should initially be noted. As the United States Supreme Court declared in United States v. Wade, 388 U.S. 218, 228--29, 87 S.Ct. 1926, 1932--33, 18 L.Ed.2d 1149 (1967):

'A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. A commentator has observed that '(t)he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor--perhaps it is responsile for more such errors than all other factors combined.' Wall, Eye-Witness Identification in Criminal Cases 26. Suggestion can be created intentionally or unintentionally in many subtle ways. And the dangers for the suspect are particularly grave when the witness' opportunity for observation was insubstantial, and thus his susceptibility to suggestion the greatest.'

An accused may desire a lineup in order to avoid unfair identification of him as the offender, or his own unnecessary subjection to trial on the charge, for at least three reasons.

First, an innocent defendant may want to exculpate himself as soon as possible. If identification is a central issue and the accused can prove to the prosecutor before trial that crucial eye-witnesses cannot identify him, the charges may well be dropped.

Second, even if the defendant is identified at the lineup he requests, it may be to his interest to discover early in the criminal proceedings the strength or not of the identification testimony. If, for instance, it is strong, he may wish to plead guilty by way of plea bargain.

Third, the defendant will want to make sure that his identification is as free from suggestion as possible. Identification in court at trial or at a preliminary hearing, where the accused sits at the defense table (and may for instance be the only black or person under twenty-five in the courtroom) may be highly suggestive. A witness who might be reluctant to identify the defendant if given the choice of two persons with similar features, might have little hesitancy in identifying the only man in the courtroom who fits the witness' description, especially in light of the fact that this man behind the defendant's table is clearly the man the prosecutor thinks committed the crime. (Further, as Wade indicates, once a witness had identified the accused in the suggestive surrounding of a preliminary hearing, he will not be likely to change his mind.) Thus the defendant has a crucial interest to be subject to identification procedures under the least suggestive circumstances possible--and this, of course, is also in the interests of the state, which desires to convict only guilty men and then only after a fair trial.

Other American jurisdictions

In the absence of controlling Louisiana statute or jurisprudence, we shall examine the national jurisprudence on the issue.

Both state and federal courts have held that there is no constitutional right to a lineup. See, e.g.: Bowen v. State, 5 Md.App. 713, 249 A.2d 499 (1969); Commonwealth v. Bradley, 336 N.E.2d 925 (Mass.App.1975); People v. Calinda, 83 Misc.2d 520, 372 N.Y.S.2d 479 (1975); Commonwealth v. Evans, 460 Pa. 313, 333 A.2d 743 (1975); Fogg v. Commonwealth, 208 Va. 541, 159 S.E.2d 616, 620 (1968); Holmes v. State, 59 Wis.2d 488, 208 N.W.2d 815 (1973); U.S. v. Kennedy, 450 F.2d 1089 (CA9, 1971), cert. denied, 406 U.S. 924, 92 S.Ct....

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